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CASE NO.: Appeal (crl.)  364 of 2002

PETITIONER: State of U.P.

RESPONDENT: Abdul Karim and Ors

DATE OF JUDGMENT: 26/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      The State of U.P. has filed this appeal against the  judgment passed by a Division Bench of the Allahabad High  Court directing acquittal of the three respondents (hereinafter  referred to as the ’A-1, A-2 and A-3’) respectively.  

2.      The accused persons  were convicted for the offence  punishable under Section 302 read with Section 34 of the  Indian Penal Code, 1860 (in short the ’IPC’) by the IVth  Additional and Sessions Judge, Bareilly in Sessions Trial No.  359/78.  

3.      Background facts in a nutshell are as follows:

The first information report (Ex. Ka. 1) was to the effect  that Buddhi was the husband of the complainant (PW-1)  whereas A-1, Abdul Karim was his elder brother. He was  indebted to some Punjabi, and hence had mortgaged his house  and 1= bigha agricultural land with him and abandoning the  village 20 years back had gone to Baheri and settled there with  his wife and children. The husband of the complainant  redeemed that property after paying debt of the Punjabi and  exercised possession over the house and agricultural land of  that accused. Three months before the occurrence accused  Abdul Karim approached her husband and requested him to  return his house or to build a shop for him. Hence her  husband had given him a shop in a portion of his house.  Subsequently, he has summoned his son, Salim to the village  and both of them started grocery shop therein. Subsequently  some dishonesty cropped in his mind and he started pressing  for return of his house and 1= bigha agricultural land but her  husband refused to do so. The agricultural plot of the accused  exists by the side of the plot of the deceased, hence he used to  cultivate the same together. He had been ploughing these  fields for the last three years and one day before the  occurrence accused Abdul Karim asked her husband not to  plough his field but her husband refused to do so. This  enraged the accused and they threatened to teach him a  lesson next day if he attempted to plough the field.  Her  husband did not care for it and challenged them to stop him if  they had any courage to do so. On the date of occurrence in  the early morning her husband had gone to plough the field  with bullocks and plough and at about 7 A.M. the complainant  and her son Mukhtar were going to provide him food there and  when they reached near the field, they saw the accused Salim  (A3) armed with an iron rod, Abdul Hamid (A-2)armed with a

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spade and Abdul Karim (A-1) armed with a ’Kassi’ proceeding  towards their field hurling abuses at her husband and they  started belabouring him with arms and their hands and  injured him. He fell down on the ground. They kept on beating  him there. Hearing shrieks of the complainant and her  husband, her brother Chhotey who had come there for call of  nature appeared there and several other co-villagers also  arrived there and on their challenge the accused left the place  running towards forest considering that her husband was  dead. Later on she arranged for a charpai from the village and  after keeping the injured thereon proceeded towards the police  station in company of Rafiq, Rashid Alauddin, Munshi, Abdul  Samad and reaching near village Etaua. On the way her  husband breathed his last and then she had gone to the police  station and lodged report at about 11.00 A.M. on the same  day.

Head Moharrir Jagdish Singh prepared check report and  G.D. report (Ex. Ka.3) on the basis of oral information of the  complainant in presence of S.I. D.D. Agarwal (PW.5) who took  up the investigation immediately. He interrogated the  complainant and then prepared inquest report, challan and  photo of the Corpse (Ex. Ka. 4 to Ka. 6) and sealed the corpse  and entrusted the same to constables for onward transmission  to the hospital for postmortem examination alongwith  necessary papers. He also prepared recovery memo (Ex. Ka. 7)  for the blood stained Chadar covering the corpse. Later on he  went to the place of occurrence and prepared site plan (Ex. Ka.  8) after inspecting the spot. He took sample and blood stained  earth and sealed the same in separate containers (Ex. 1 and 2)  after preparing recovery memo (Ex. Ka. 9). Later on other  witnesses were also interrogated and after concluding the  investigation he submitted the charge-sheet against the  accused. The accused kept on absconding and surrendered to  the court later on. He proved statement of Smt. Mango  recorded under section 161 of the Code of Criminal Procedure,  1973 (in short the ’Code’) vide Ex. Ka. 12 during trial.

Dr. I.S. Tomar (PW.4) carried on postmortem examination  of the corpse of the deceased on 13-4-1978 at about 3.15 P.M.  and he found that the deceased was aged about 40 years and  his death occurred within 1< days. He was average built and  rigor mortis was present in the lower limbs whereas it passed  of the upper limbs. He found following ante-mortem injuries  on his person:

1. Lacerated wound 2.5 cm x .5 cm  x scalp deep over left side  head 9 cm above left ear, placed obliquely. 2. Lacerated wound 2 cm x 5 cm. X scalp deep over right side  head 7 cm above right ear, placed obliquely. 3. Lacerated wound 3 cm x 1 cm. X scalp deep over top of  head in middle, placed obliquely. 4. Multiple clotted contusions in an area of 24 cm x 4 cm over  outer aspect of right arm from upper to lower end. 5. Abraded contusion 3 cm x 2 cm over back of right elbow. 6. Contusion 4 cm x 3 cm over dorsum of right hand. 7. Multiple abraded contusion in area of 6 cm x 1.7 cm over of  left shoulder. 8. Multiple abraded contusions in an area of 25 cm x 8 cm  over back and anterior aspect of left arm, from shoulder to  elbow. 9.      Two  lacerated wounds-one 3 cm x 5 cm x 6 cm deep and  other 2 cm x 5 cm x bone deep over back of left forearm in  upper third. 10.     Abraded contusion 10 cm x 4 cm area over back of left

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forearm. 11.     Contusion 6 cm x 4 cm over dorsum of left hand and left ring finger is fractured. 12.     Multiple contusions in an area of 36 cm x 11 cm over  outer aspect of left thigh and left buttock placed parallel to  each other and two parallel lines in every contusion. 13.     Multiple lacerated wounds in an area of 21 cm x 5 cm x bone deep over front of left leg. 14.     Lacerated wound 1 cm x 1 cm x 6 cm deep outer aspect  of left knee. 15.     Multiple contusions in an crea of 6 cm x 2 cm over back  of leg in upper third. 16.     Lacerated wound 4 cm x 1.5 cm x bone deep over front of right led in middle and both bones are fractured. 17.     Contusion 4 cm x 3 cm over outer aspect of right knee. 18.     Contusion 2 cm x 1 cm right side chest 9 cm from nipple  at 5 ’0’ clock position. 19. Multiple contusions in an area of 43 cm x 26 cm over  whole of back from shoulder to waist placed parallel and  obliquely. Two parallel lines seen in every contusion.

4.      On internal examination, he found parietal bone and  axillary bone fractured and brain and membrane congested.  Blood present around the membrane. Heart was full on right  side with blood whereas it was empty on left side. Stomach  and small intestines were empty whereas large intestine was  half full. Death was due to shock and haemorrhage resulted  through antemortem injuries. He proved postmortem  examination report Ex. Ka. 1 and he had sent the same  alongwith blood stained shirts and underwear of the deceased  in a sealed packet to the Investigating Officer. In his opinion  the injuries and death of the deceased was possible at 12-4- 1978 at about 7-8 A.M. through iron rod, spade and Kassi. 5.      After the investigation was completed charge sheet was  filed. But the accused persons pleaded innocence and claimed  to be tried. Five witnesses were examined to further the  prosecution version. Smt. Mango (PW-1) widow of the  deceased, Chhotey (PW-2) brother of wife of the deceased and  Mukhtar Ahmad (PW-3) son of the deceased were stated to be  eye witnesses. The trial Court found the evidence of PWs 1, 2  and 3 to be credible and cogent and convicted the respondents  as afore-stated.  

6.      In appeal, the High Court analysed the evidence to hold  that the prosecution has failed to establish its accusations.  Accordingly, the judgment of acquittal was passed.  

7.      In support of the appeal, learned counsel for the  appellant-State submitted that the evidence of PWs 1, 2 and 3  leaves no manner of doubt that the respondents were the  assailants and the trial Court had rightly convicted them.

8.      Learned counsel for the respondents on the other hand  supported the judgment of acquittal.  

9.      As rightly noted by the High Court the fate of the case  depends on the acceptability of the evidence of PWs 1, 2 and 3.  PW-1 partially resiled from her statement made during  investigation. According to her, she saw the assailants from a  distance of one mile. Sugarcanes were standing in the field  which intervened between the place where she was and the  field where the incident occurred. She accepted that she had  not herself seen the assault but saw the accused persons  while they were making their escape towards the jungle.  As  noted above, she claimed to have seen them running from a

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distance of one mile. She further admitted that in between the  village and her field the number of fields were situated where  sugarcane and wheat crops were standing.  

10.     PW-2 stated that he had also seen the accused persons  committing the assaults.  But in the cross examination he  admitted that he had come to the place when the assault was  over and he had seen the accused persons running towards  the jungle in the sugarcane field. He accepted that he was with  PW 1.    

11.     PW-3 was a child of 9 years at the time of incident. He  also admitted to have seen the accused persons running away  with their backs towards him standing near his mother.   

12.     The evidence of PWs 1, 2 and 3 clearly indicated that  they were far away from the field where the alleged incident  took place. The High Court noted that identification was  practically impossible from such a large distance particularly  when the field was obstructed by standing crops  of sugarcane  which were not less than 6-7 ft in height.  The High Court  therefore rightly observed that they could not have seen the  assaults not only because of the distance but because of the  presence of heights of crops of sugarcane. Additionally, though  all the witnesses stated that the accused persons were  carrying sharp cutting weapons and rods, not even one injury  was an incised one. All the injuries were either lacerated  wounds or contusion.  

13.     In view of the total discrepant nature of the evidence the  High Court has rightly discarded the prosecution version and  set aside the conviction. We find no reason to interfere with  the conclusions of the High Court. The appeal fails and is  dismissed accordingly.